Natural Resources committee  I hesitate to speculate about a project that is currently in process. If you permit me, I'll maybe use a slightly different example, the Mackenzie gas pipeline. There you have a very major project running through an area with many aboriginal people with not even claimed rights; they were real rights in the sense that they had been recognized and defined through land claim settlement agreements, with some groups not yet in that stage but with very strong claims.

Natural Resources committee  It could, but I stress the “could”, because the courts are actually quite deferential to decision-makers.

Natural Resources committee  I wouldn't want to be accused of providing legal advice to the committee because of course that's not my position.

Natural Resources committee  It would be no more than speculation on my part to say what judges in Canada should do. It would come as no surprise if they did consult international documents. We have a long tradition of documenting human rights too. They are actually all handled in the same way. That helps when interpreting situations here in our country.

Natural Resources committee  I feel that we are already doing that. As my colleagues have mentioned, environmental questions and questions that affect aboriginal interests overlap considerably. It makes a lot of sense to use the processes that we already have, in this case the environmental assessment process, just as a matter of efficiency.

Natural Resources committee  For a process? I'm not in a position to answer that.

Natural Resources committee  My department would not get involved in that.

Natural Resources committee  That's right.

Natural Resources committee  It's the same Constitution, it's the same section 35, it's the same legal duty to consult that applies across the entire crown, as manifested through individual departments. So to answer your question, it's the same everywhere. I refer to the interim guidelines on the duty to consult.

Natural Resources committee  The government's position is fairly well-known. The support that was acknowledged for the UN Declaration for the Rights of Indigenous Peoples was carefully worded to recall the concerns that Canada put on the record in 2007 at the United Nations about several of the terms in the declaration, including the one you're mentioning on free, prior, and informed consent.

Natural Resources committee  I'll have to give my impression based on communication with outside parties. My own observation, from having spoken with both aboriginal groups and industry, is that it's far from perfect, in the sense that it would be great to have a code to simply pick up and follow all the rules.

Natural Resources committee  I'm speculating. Theoretically, it could be constructed that way. The interim guidelines that were issued in March of this year do a fairly good job of setting out that spectrum in terms of what would necessarily be recorded in any stage. I suspect when proponents and aboriginal groups look at that document they would have a good sense of where they fit and how to proceed.

Natural Resources committee  To be honest, I don't know. Much of the same information would be relevant in both.

Natural Resources committee  The duty to consult as articulated by the courts isn't articulated that way, because of course the courts were concerned with activities that would have a negative impact on the aboriginal community. The way I see client departments approaching the issue, I would say with some confidence that they're well aware that a minister or a decision-maker has to take into account many factors to make the best possible decision.

Natural Resources committee  We provide legal services to all federal departments and agencies. In terms of the duty to consult, our approach is really no different. They will come to us with specific questions. Since the decisions came out from the Supreme Court, we've invested quite a bit of effort to train other departments, to have them better equipped to understand their obligations, but also not to be afraid of them, not to paralyze regulatory processes.